Category Archives: Judicial Activism

60th Anniversary of Brown Vs. Board of Education

Gail Jarvis turns his eye on the Brown vs. Board decision. We’re assured this was a wonderful thing, but as Jarvis points out, the actual results have not been all that wonderful. From the Canada Free Press:

The Brown decision brings to mind the following quote from James Russell Lowell: “Among the lessons taught by the French Revolution there is none sadder or more striking than this, that you may make everything else out of the passions of men except a political system that will work, and that there is nothing so pitilessly and unconsciously cruel as sincerity formulated into dogma.” – Wise words indeed. “Sincerity formulated into dogma” certainly characterizes the Brown decision. It might have been based on good intentions, but attempts to accomplish its idyllic goals actually did more harm than good.

“Sincerity formulated into dogma” could just as well describe not just the French Revolution, but the Russian, Chinese, and Cambodian revolutions too. Otherworldly ideas imposed on flesh and blood do not yield paradise, but mayhem.

Is that constitutional?

Once upon a time, the meaning of the term “constitutional” was understood as “what powers the federal government is given.” But thanks largely to the legacy of the president whose birthday it is today, that term now means “what subjects of the United States are permitted to do.”

Think I’m wrong? Check out this story on yet another DC power grab:

A federal appeals court on Tuesday ruled that North Carolina’s attempt to offer a “Choose Life” license plate and not provide an abortion-rights alternative was unconstitutional.

The ruling is the third time one of the Republican-led General Assembly’s abortion laws has been struck down over the past three years.

The U.S. Court of Appeals for the Fourth Circuit ruled in a 3-0 opinion written by Judge James Wynn of North Carolina.

“Chief amongst the evils the First Amendment prohibits are government ‘restrictions distinguishing among different speakers, allowing speech by some but not others,’” Wynn wrote.

Now there are certain extremists (me, for example) who think the First Amendment, like all the Bill of Rights, defined clear limitations to federal power. Those dangerous extremists would argue the sovereign State of North Carolina not only has the final say on what it puts on the license tags it issues, but would go on to say that North Carolina can adopt any slogan it wants, no matter who in DC disapproves. These days, however, all reasonable and moderate people know the Constitution makes DC sovereign. So it’s only natural that DC tells the people of the States what they can and cannot do.

Meanwhile, in Massachusetts, a private Catholic school is being sued by a cafeteria worker claiming he should be allowed to work at that school despite his homosexuality. He’s in a “same-sex marriage,” and the school, which upholds traditional Catholic values, does not want to be seen as endorsing that man’s lifestyle.

But as NPR reporter Tovia Smith observes in her story, “Ultimately the question of how much leeway religious organizations have in hiring will be answered by the Supreme Court.”

Get that? We must look to the federal government to learn “how much leeway” will be permitted.

Notice that the political doctrine being enforced here is that DC views “rights” as belonging to the individual, not to the States or religious institutions.

So when libertarians claim their ideology is the best weapon in resisting an authoritarian federal government, ask how that is possible when they hold the same central belief that justifies that government’s endless expansion into our lives.

Originalism is Not That Complicated

This is a post about Justice Scalia, but Daniel McCarthy uses the opportunity to take a swipe at movement conservatism (what else is new) and a rather obtuse swipe at originalism. For this new iteration of Daniel McCarthy talk of nuance, thoughtfulness etc. is a synonym for moderation. But an honest examination of originalism leads to more, not less, radical outcomes. Below is my post which has not yet been approved. I can’t see why it would be censored, unless they are balking at my reference to natural born citizen, but that is a perfectly legit example.

There are issues with originalism. Do you go with what what was actually written or what was likely intended? And whose intent? The Framers only? The state ratifying conventions only? Popular understanding at the time? Some combination? But that said, most issues are not murky from an originalist standpoint, particularly the doctrine of enumerated powers. So if we have all these originalist jurists then why aren’t they striking down programs on the basis of enumerated powers? Saying “you can’t do that” is not activism. Expanding powers and rights is activism.

One issue where original intent really is murky is just what they intended by requiring that the President be a natural born citizen. Perhaps they could look into that. But whether the Framers/state conventions intended to allow the Feds to run a healthcare program is not murky. They didn’t.

Modern conservative judges are only originalists to the extent that it doesn’t strike at longstanding programs. They are originalists around the edges.

Note: My comment has been approved.

The next great Civil Rights crusade

After a number of recent court decisions mandating same-sex “marriage,” many conservatives predicted it was just a matter of time until we’d hear demands for the recognition of group marriage (polyamory).

But there’s a cause more pressing than the “right” of three or more to consider themselves married. That cause is neatly summarized in the following headline and linked story:

13-year-old girl raped by more than a dozen illegal aliens in Texas

Not only does this crisis pertain to the ongoing and escalating War against the Family, but also reveals the great cultural divide that’s only going to escalate, as articles such as this illustrate. In Mexico, you see, the age of consent is 12, rather than 18, as required by those stuffy old Anglos. And laws that enforce the values of white culture are inherently racist, as any tenured radical will kindly explain to you. (Hint: It’s called “white privilege.”)

That’s why I predict lowering the age of consent to 12 will be the next battle in the never-ending Civil Rights crusade. It would strike a double blow against white culture, on both traditional sex roles as well as on traditional cultural norms. It’s a win-win for multiculturalism.

Judge finds racial bias played a role in three death row cases

In the name of “racial justice,” a North Carolina judge has overturned the death sentences of three murderers. Here’s an introduction to the “victims of racism” the court has spared:

A Cumberland County judge has sentenced three death row inmates to life in prison without possibility for parole after finding that racial discrimination in jury selection played a key role in securing their death sentences.

Judge Gregory Weeks issued the ruling on Thursday for Tilmon Golphin, Christina Walters and Quintel Augustine after the challenged their sentences under the 2009 Racial Justice Act.

Walters was convicted of killing two women in a gang initiation ritual. Golphin was convicted of murdering two law enforcement officers at a traffic stop. Augustine was convicted of killing a Fayetteville police officer.

Commenting on the case, Ken Rose of the Center for Death Penalty Litigation proclaimed that the ruling proves “our capital punishment system is infected by racial bias.”

But if that’s true, then SOMEONE had to commit an act of racial bias. Who was it? What exactly did this person do that demonstrated racial bias? Is Mr. Rose going to prosecute that person?

Or is it possible that no single perpetrator can be identified because “racism” is what defines Western society? I think that’s what Rose is claiming. He’s not alone – that argument can be found here. And if that is the case, then the entire fabric of Western culture must be dismantled. Private property, the right of association, inheritance, any aspect of a free society that results in a “disparate impact” for protected minorities is a target.

We are racing toward Third-World anarchy.

Those silly secessionists

If you scroll down to the comments section of the numerous articles on the secession petitions, you’ll encounter much snark and attitude toward those of us who want to reclaim self-government. We’re ignorant, we’re racist, we’re treasonous – why, our motivations are CLEARLY anything OTHER THAN the motivations we state for supporting secession, which is to stop an out-of-control central government.

After all, who in his right mind would want to secede from an authoritarian regime that’s busily constructing a vast, secret infrastructure for the purpose of conducting citizen surveillance?

This regime, by the way, now has the power to arrest and detain American citizens as long as it wants. Who says the central government has that power? For one, there’s the Obama administration itself:

“The president strongly believes that to detain American citizens in military custody infinitely without trial, would be a break with our traditions and values as a nation, and wants to make sure that any type of authorization coming from congress, complies with our Constitution, our rules of war and any applicable laws.”

Yes, let’s make sure some government employee with a law degree assures us the i’s are dotted and the t’s crossed before we trash the law of the land. All in the name of “national security,” of course. What will Obama’s supporters say when Team Obama unleashes that power to crush dissent?

And I wonder what those supporters will do when he starts to reward his supporters in the name of promoting racial equality? It’s coming:

If your organization has a policy or practice that doesn’t benefit minorities equally, watch out: The Obama administration could sue you for racial discrimination under a dubious legal theory that many argue is unconstitutional.

President Obama intends to close “persistent gaps” between whites and minorities in everything from credit scores and homeownership to test scores and graduation rates.

His remedy — short of new affirmative-action legislation — is to sue financial companies, schools and employers based on “disparate impact” complaints — a stealthy way to achieve racial preferences, opposed 2 to 1 by Americans.

Under this broad interpretation of civil-rights law, virtually any organization can be held liable for race bias if it maintains a policy that negatively impacts one racial group more than another — even if it has no racist motive and applies the policy evenly across all groups.

What will Obama’s young white supporters think when they’re unfairly denied jobs? It’s going to happen – there’s no other way to make racial quotas work. Any racial imbalances in the workplace that reflect those of the school system – you have heard of the black-white performance gap, haven’t you? – will result in swift, harsh action.

Who remembers Obama’s gaffe last March, when, during a meeting with Russian Prime Minister Medvedev, he unknowingly whispered into a live microphone, “This is my last election. After my election I have more flexibility.”?

You don’t remember that? Well, you’re about to find out just how flexible Obama can be now that he’s armed with a mandate as well as new, unconstitutional powers to impose his radical agenda.

Let’s see how silly secession appears then.

Our nationalistic Supreme Court

The clues for today’s Supreme Court decision were actually found in the immigration and campaign finance decisions made by the court a few days ago. This is very much a nationalistic Supreme Court. This will be the Roberts Court’s legacy. It does not like the states going off to try and decide policy on its own. Thus it tells Montana it cannot write its own campaign finance laws; it tells Arizona it can’t write it’s own immigration laws and tells the states who filed suit against individual mandate sorry, the mandate is a tax and Congress can tax. End of discussion.

Like immigration, the issue goes back to Congress, which as we are reading in a very good article on TAC by Leo Linbeck III, is utterly disfunctional right now, which is why the states have entered the realm of policy to decide on its own because they are tired of waiting.

The mandate is out there as “freedom” issue for those wishing to pursue it. But many Republicans who once supported the mandate (before being against it) may just decide to drop the issue. Will Romney pick it up? Given that he shares a similar background as Roberts as pro-big business “conservative”, me thinks he won’t make the health care issue all that important to his campaign. Big business has wanted the politicians to do something about health care costs (which Romney tried to do in Massachusetts)for a long time and the mandate which forces persons to have health insurance was a way be able to steer business to them. Why change it? And given insurance company donations to the Romney campaign, I doubt if he will.

Liberal hypocrisy on same-sex “marriage”

It’s hysterical how liberals use the language of conservatism to push their agenda. Here in North Carolina, liberals are resorting to deceptive slogans in their campaign against Amendment One, which will define marriage as between one man and one woman. Liberals claim they oppose the amendment so they can “keep government out of our lives” and expand the “institution of marriage” to homosexuals. This blatant hypocrisy reveals how desperate liberals are – the latest polls indicate voters will approve the amendment by a comfortable margin.

But to borrow a slogan from the homosexual lobby, “It gets better!” The latest Creative Loafing features what’s supposed to be a tear-jerker about two women who, we’re told, live in fear of Amendment One. They live that life of fear in their posh lakefront home on Lake Norman. One is described as the director of marketing for Wells Fargo and the other is a “stay-at-home mom,” which is normally a term of derision for leftists.

What the article conveniently leaves out is that same-sex “marriage” is ALREADY illegal in North Carolina by statute. The amendment will only protect existing law against judicial activism.

Liberals – you just can’t trust ‘em!

Ron Paul is Right (as Usual) about Judicial Review and the Commerce Clause

Does Mitt Romney get this? Does Santorum? Does Gingrich? The Republican primary electorate has chosen the wrong candidate. The three stooges would be afraid to say what Paul is saying here even if they understood it.

The commerce clause was intended simply to give Congress the power to regulate foreign trade, and also to prevent states from imposing tariffs on interstate goods. In Federalist Paper No. 22, Alexander Hamilton makes it clear the simple intent behind the clause was to prevent states from placing tolls or tariffs on goods as they passed through each state– a practice that had proven particularly destructive across the many principalities of the German empire.

But the Supreme Court has utterly abused the commerce clause for decades,…


The doctrine of judicial review, which is nowhere to be found in Article III of the Constitution, has done nothing to defend liberty against extra-constitutional excesses by government. It is federalism and states’ rights that should protect our liberty, not nine individuals on a godlike Supreme Court.

Lincoln loving Newt Gingrich wouldn’t know federalism and states’ rights if they bit him on the rear.

Federal judge rejects California’s Proposition 8

DC’s jihad against traditional America just got a little uglier:

California’s voter-approved ban on same-sex marriage violates the U.S. Constitution, a federal appeals court in San Francisco ruled Tuesday.

The decision by a three-judge panel of the 9th U.S. Circuit Court of Appeals is expected to be appealed, to either the full court or to the U.S. Supreme Court. But supporters of same-sex marriages cheered the decision when it was announced outside the courthouse Tuesday morning.

You’ll never guess what illegally imposed amendment the judges cited for this latest federal power grab. Yes, that one.

Breaking: Federal court upholds Obamacare

And now for the shocker of the century:

The majority writes: “We find that the minimum coverage provision is a valid exercise of legislative power by Congress under the Commerce Clause and therefore AFFIRM the decision of the district court.” Key passage:

By regulating the practice of self-insuring for the cost of health care delivery, the minimum coverage provision is facially constitutional under the Commerce Clause for two independent reasons. First, the provision regulates economic activity that Congress had a rational basis to believe has substantial effects on interstate commerce. In addition, Congress had a rational basis to believe that the provision was essential to its larger economic scheme reforming the interstate markets in health care and health insurance.

Judge Jeffrey Sutton, one of the judges who voted to uphold the act, clerked for Scalia, and was nominated by George W. Bush.

Actually, this is two shockers in one! Not only has the Commerce Clause been used ONCE AGAIN to grant the central government powers never contemplated by the people, a Bush-appointed judge sided with Obama.

Still think electing Republicans makes any difference?

I can’t resist quoting my blog post from last September, on a court ruling that said the Commerce Clause gave DC final say on gun laws:

I mean really — you ask the Feds how much power they have over you and the answer is “lots!” That’s a surprise? And they base their authority on the commerce clause, which lovers of big government have turned into Silly Putty. Yawwwn. …

Guess what will happen when Obamacare faces the exact same challenge? Think the commerce clause can be stretched to cover that, too?

Anyone out there care to make a little bet?

Yep. That’s some Clause, that Commerce Clause.

Birther News: SCOTUS Rejects Orly Taitz’s Appeal of Fine

Peach Pundit has the story. Sorry, I would link to the original Atlanta Journal-Constitution (know affectionately in these parts as the Atlanta Urinal-Constipation) article but the link is broken. As I say in the PP thread (with minor revisions):

I don’t think Obama was born in Kenya, but I do think this issue needs a thorough public airing. The anti-birthers have often said, “If you don’t think Obama is eligible, then prove it in court.” But that implies that you could actually get a fair hearing in court. Here not only did Taitz and her client not get a fair hearing, they got fined for even bringing the issue up. Clearly the message from this court is “go away, and don’t come back.” So I am sure, in the name of basic fairness and consistency, that the “prove it in court” brigade will denounce this decision because it denies the issue a fair hearing.

I have always thought it was naive to believe that this would be settled in court. There is no judge who wants this hot potato, and they will find some way to get rid of it, as this judge did. It is the job of the press to investigate and get to the bottom of this and they have been stunningly incurious. The press (and that includes non-professional bloggers) is supposed to challenge the conventional wisdom and the powers that be, not be pristine conduits of pure unadulterated conventional wisdom.

Part of the problem with “proving it in court” is that it is not clear what the appropriate venue would be. Who is the rightful plaintiff? What is the rightful jurisdiction? I’m not comfortable with these military members refusing orders to make a point, which is what the case in question was about.

The 14th strikes again!

In ruling against the will of the people when he struck down California’s Prop 8, Judge Walker based his decision on liberals’ favorite part of the Constitution:

Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.

The 14th amendment is the Swiss Army knife for Alinskyite and Gramscian social revolutionaries. Here are some other significant decisions based on that amendment:

Murray vs. Curlett, 1963, banned prayer in schools
Roe v. Wade, 1973, created the right to abortion
Stone v. Graham, 1980, banned 10 Commandments displays
Plyler v. Doe, 1982, made anchor babies US citizens
Lawrence v. Texas, 2003, struck down anti-sodomy laws

Notice that every one of these Supreme Court decisions assaulted traditional society while gutting States’ Rights. The radicals who intend to reconstruct society know they need a powerful weapon to impose their agenda, and there’s no better weapon for that than a centralized government with no limits to its power.

Missouri, Obamacare and Nullification

From the NY Times:

Missouri voters on Tuesday easily approved a measure aimed at nullifying the new federal health care law, becoming the first state in the nation where ordinary people made known their dismay over the issue at the ballot box.

…“This really wasn’t an effort to poke the president in the eye,” said State Senator Jim Lembke, a Republican. “First and foremost, this was about defining the role of state government and the role of federal government. Whether it’s here in Missouri with health care or in Arizona with illegal immigration, the states are going to get together on this now.”

This is a perfect microcosm for how the right and left view how a constitutional republic should work. Opponents of Obamacare took to the appropriate venue and spoke at the ballot box. And what instrument do proponents of Obamacare hope to utilize to thwart the will of the good people of Missouri? Where will they wage their battle?

Where else:

“While we’re disappointed that Missourians didn’t vote against this, we think the courts will ultimately decide it,” said David M. Dillon, a spokesman for the Missouri Hospital Association.

Archaeologists unearth mystery document in Philadelphia

Historians, political scientists, and legal experts attempt to decipher strange document found in the city in which it is believed to have been composed:

Researcher Lorianne Updike Toler was intrigued by the centuries-old document at the Historical Society of Pennsylvania.

On the back of a treasured draft of the U.S. Constitution was a truncated version of the same document, starting with the familiar words: “We The People. . . .”

Some experts allege the document chartered something called a “republic” with “limited powers,” something that modern political scientists agree would only prevent the government from doing good things.

“This was clearly written by backward, unsophisticated people,” said one noted scholar of government.

Let’s Discuss the Supreme Court Ruling on Campaign Finance

In general I support the decision, and I opposed McCain/Feingold because I thought it was unconstitutional and bad policy. If the First Amendment was meant to protect anything at all, it was meant to protect political speech. It wasn’t meant to protect porn and nude dancing contrary to what the ACLU would have you believe, but it was intended to protect political speech.

That said, I do have some concerns. I don’t buy the idea that corporations are people. (If you drive a corporation out of business are you guilty of murder? :-)) Nor do I buy the idea entirely that money is speech, but what the money buys such as TV ads is speech. Also, since I reject the incorporation doctrine, States are free to regulate campaign finance however they see fit within the limits of their own State constitutions.